Breaking: Supreme Court rejects ban on violent video game sales to kids

posted at 10:57 am on June 27, 2011 by Ed Morrissey

States can no longer ban the sale or rental of violent video games to minors, thanks to a decision by the Supreme Court this morning.  In a victory for civil libertarians, the court upheld a 9th Circuit decision on a 7-2 vote that struck down a California law on the bases of the First and Fourteenth Amendments:

The high court agreed Monday with a federal court’s decision to throw out California’s ban on the sale or rental of violent video games to minors. The 9th U.S. Circuit Court of Appeals in Sacramento said the law violated minors’ rights under the First and Fourteenth amendments.

The 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.

The decision provides an odd alignment among the justices.  The two dissenters in this case were Clarence Thomas and Stephen Breyer, not normally seen on the same side of split decisions on the Supreme Court.  Antonin Scalia filed the opinion for the majority, and faulted California for trying to treat violence as obscenity:

As  in  Stevens, California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter.  That does not suffice.  Our cases have been clear that the obscenity exception to the First Amendment does not  cover whatever a legislature finds shocking, but only depictions of “sexual conduct,”  Miller, supra, at 24.   See also  Cohen v.  California,  403 U. S. 15, 20 (1971); Roth, supra, at 487, and n. 20.

Stevens was not the first time we have encountered and rejected a State’s attempt to  shoehorn speech about violence into  obscenity.   In  Winters, we considered a New York criminal statute “forbid[ding] the massing of stories of bloodshed and lust in such a way as to incite to crime against the person,” 333 U. S., at 514.   The New York Court of Appeals upheld the provision as a law against obscenity.  “[T]here can be no more precise test of written indecency or obscenity,” it said, “than the continuing and changeable experience of the community as to what types of books are likely to bring about the corruption of public morals or other analogous injury to the public order. ”  Id., at 514 (internal quotation marks omitted).  That is  of  course the same expansive view of governmental power to abridge the freedom of speech based on interest-balancing that we rejected in Stevens.  Our opinion in Winters, which concluded that the New York statute failed a heightened vagueness standard applicable to restrictions upon speech entitled to First Amendment protection, 333 U. S., at 517–519, made clear that  violence is not part of the obscenity that the Constitution permits to be regulated.  The speech reached by the statute contained “no indecency or obscenity in any sense heretofore known to the law.”  Id., at 519.

This seems especially explosive:

California does not argue that it is empowered to prohibit selling offensively violent works  to adults—and it is wise not to, since that is but a hair’s breadth from the argument rejected in  Stevens.  Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children. That is unprecedented and mistaken.  “[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.”

I have two thoughts about this part of the ruling.  The Obama administration wants to go after companies that advertise to children, targeting such longstanding marketing icons as Tony the Tiger for Kellogg’s Frosted Flakes, for example.  Now that the court has ruled that entertainment companies have the right to market directly to children for violent video games, it seems a natural question to ask whether the Obama administration would be abusing its power to interfere with Kelloggs and other food manufacturers from doing the same, even with nominal FCC jurisdiction on airwaves.

Thomas rejects the idea that the First Amendment applies at all, giving a detailed analysis of the evolution of thinking about children in a free society.  He concludes that portion of his opinion with this observation:

In light of  this history, the Framers could not possibly have understood “the freedom of speech” to include an unqualified right to speak to minors.   Specifically, I am sure that the founding generation would not have understood “the freedom of speech” to include a right to speak to children without going through their parents.  As a consequence, I do not believe that laws limiting such speech—for example, by requiring parental consent to speak to a minor—“abridg[e] the freedom of speech” within the original meaning of the First Amendment.

He also points out that we already do restrict certain activities of minors:

Moreover, there are many things minors today cannot do at all,  whether they have parental consent or not.  State laws set minimum ages for voting and jury  duty.  See  Roper, supra, at  581–585 (Appendixes  B and  C to opinion of Court).  In California (the State at issue here), minors cannot drive for hire or  drive a school bus, Cal. Veh. Code Ann. §§12515, 12516 (West 2010), purchase tobacco, Cal. Penal Code Ann. §308(b) (West 2008), play bingo for money, §326.5(e), or execute a will, Cal. Probate Code Ann. §6220 (West 2009).

Minors younger than 17 years of age can’t watch an R-rated movie without a parent or guardian, either, although I believe that is an MPAA agreement with participating theaters and not law in any jurisdiction.

I agree with Thomas, but only to a point.  The restriction of such materials should be the decision of the parent and not the state.  Parents can and do have a great deal of influence and power to affect a ban, if they see fit to do so.  Wal-Mart and other retailers already have restrictions on what kind of entertainment they’re willing to sell at all (not just to children) thanks to the economic power of parents.  The California law was an attempt to insert the police into what should have been a private parental decision, a further regulation on business that turned retailers into the equivalent of bar owners, and for little public-safety purpose.  Thomas, as always, has an interesting argument, but he’s on the wrong side of this question.

Update: The MPAA rating restriction applies to those under 17 not accompanied by a parent or guardian, a distinction I left out.  Thanks to Madison Conservative in the comments for pointing it out.  I fixed it in the text above.

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Kids are subjected to displays and even participation of ‘violence’ to some degree each and every day whether it be books, TV, movies, the internet, or even school lessons and pee-wee to high school football. The Justices are further correct in their assessment of children’s stories and nursery rhymes. They are filled with violence and even torture. The entire Harry Potter series of books and especially the series of movies are filled with diabolical treachery and violence… and parents LOVE Harry Potter for their kids. Kids under 18 yrs old are to be parented. Period. By being ‘parented’ they are protected from exposure to gore and violence too intense for children if the parents are diligent and give a darn. We do not need yet more laws and more bureaucracy to do the job of parents.

For once, the courts don’t take the route of the Nanny-State. Now if they’d only apply the same route where grown ups are concerned. That would be something worth celebrating.

FlatFoot on June 27, 2011 at 12:38 PM

My parents had the perfect solution to this problem: the disc gets broken, the child gets spanked, and the allowance money used to buy the illicit game (or explicit music CD) is not refunded. This is the only way to handle children with inappropriate media. You can bet it didn’t happen again. It’s hard to save up $59.99 for a new game, or whatever a music CD costs, when you’re making a few dollars a week.

mabryb1 on June 27, 2011 at 12:47 PM

Retailers, on the other hand, don’t carry AO (adult only games). You need to look online or some small shop lost somewhere to find them. Considering that AO games are usually foreign, these cost even more due to the import stat. Even then, these are limited to PC games as console makers refuse to license AO games at all. Even then, the games’ industry as a whole is pretty good in filtering offensive content.

ptcamn on June 27, 2011 at 12:29 PM

Retailers did sell adult computer games back in the 80′s and 90′s. I remember getting Leisure Suit Larry in the Land of the Lounge Lizards at I believe a Babbage’s(or was it Electronics Boutique?) at the mall. Technically my mom bought it for me though, so the checkout clerk didn’t think anything of it.

Doughboy on June 27, 2011 at 12:53 PM

The Obama administration wants to go after companies that advertise to children

Food police hardest hit. Good riddance.

Restrictions like this belong to parents, not the state.

These are dangerous times for our First Amendment rights, making this reaffirmation especially welcome.

petefrt on June 27, 2011 at 1:03 PM

@Doughboy

They certainly did. I am referring to the industry nowadays (or at least since it became the industry that it is today), and specifically store chains the likes of Target, Walmart, Best Buy, and so forth (with Amazon and the like having pulled certain games of their lists on their own, and having the extra barrier of kids needing a parent with a credit card to buy anything).

Part of the reason the ESRB was instituted was Mortal Kombat back in the early 90′s, considered too violent (mainly because of the digitized characters as blood had been portrayed in games before). Before that there was no rating.

But you could certainly buy any games at the time since there was no rating at all. Leisure Suit Larry wasn’t an adult game but rather a “cute cartoony game”. While your mom bought it, I am certain you could have bought it yourself as well. It would have been completely up to the store back then.

ptcamn on June 27, 2011 at 1:06 PM

Good for them. This nanny-state nonsense would have done very little good anyhow. Parents are the ones supposed to police kids, and any youngster with the faintest know-how can simply go and download what they’re forbidden to buy at the store.

Uncle Sams Nephew on June 27, 2011 at 1:11 PM

This reminds me that the very first movie I ever saw was “Psycho”, when I was about three. My parents went to see it at the drive-in, and they thought my baby brother and I were asleep in the back seat. Too late they realized that we were awake and saw most of it.

I’ve never murdered anyone, and neither has my brother.

juliesa on June 27, 2011 at 1:13 PM

NotCoach on June 27, 2011 at 12:28 PM:

I understand fully that the Bill of Rights is exclusively a relationship between government and the citizens.

Apparently you don’t or you wouldn’t use the term citizens. Permanent Residents are citizens, yet they have all the same rights as citizens except in an individual’s relationship with the process of governing.

But minors are not full fledged citizens.

Correct in that they have guardians, which for all intents and purposes are the same thing in that placing requirements on the child is also placing a requirement on the guardian. As I noted before, there are some very clear cut exemptions to pretty much all of the Bill of Rights but they are very limited and this case, for example is quite beyond those limits.

“… but beyond that their rights are severely limited and dictated by their parents.

How are they severely limited? But I guess more interestingly, what part of “dictated by parents” don’t you agree with since you appear to prefer dictaed by government more than dictated by parents?

Requiring parental consent to enter a house of worship is not the same thing as promoting a religion.

It’s interference in the freedom of the parent, isn’t it? Again, what happened to ‘dictated by the parent?’ Does requiring parental consent here have some overarching issue related to public morals or public order that this type of law needs to be controlled by the state government? Please explain why the incorporation doesn’t apply in this case.

Dusty on June 27, 2011 at 1:16 PM

Dusty on June 27, 2011 at 1:16 PM

Permanent Residents are citizens = Permanent Residents aren’t citizens

For what it’s worth.

Dusty on June 27, 2011 at 1:18 PM

Heh. a quick skim of the Huffers’ reactions reveals that quite of few of them think this is a victory for the eeeevil corporations.

juliesa on June 27, 2011 at 1:19 PM

I used to work at Toys “R” Us a few years ago. We had a policy where the store would not sell any video games rated ‘AO’ for Adults Only. Games rated ‘M’ for Mature could not be sold to minors and we had to check the ID of anyone buying one. If an adult made it clear they were buying the game for a minor who was present we had to hand the game to the adult and not the kid after the purchase was made. Anyone who violated this policy was fired. I think it was store policy and not mandated by the state.

Ultimately, the parents should choose what games their kids can buy/play. Hopefully retailers will respect that and police themselves.

bigmike87 on June 27, 2011 at 1:20 PM

So are we finally DONE trying to enact these laws ?

State after state after state has tried and in EVERY.SINGLE.CASE one court or another has struck the laws down. Now that the ultimate court has spoken, can we please stop wasting tax money enacting laws that are 1) not necessary, as any parent worth their salt is preventing their kid from playing games they don’t want them to in the first place, and 2) that is blatantly unconstitutional ?

I would love to know the aggregate of tax money wasted on this nonsense.

deadrody on June 27, 2011 at 1:22 PM

For all the people who think Justice Thomas isn’t paying attention because he doesn’t speak in session, or is simply Justice Scalia’s yes man, this proves you’re wrong. I wish he would participate in questioning, but he rarely comes down on the wrong side of things, in my view.

I have to run out, but want to submit this for discussion: In March, ICANN — the global authority over internet domains — approved the creation of new web suffixes, among them “.xxx” for pornography. This is something that I have advocated for many years, but in a bizarre twist, the Family Research Council (a Christian-based conservative political organization) opposed it, believing that it would legitimize internet porn. Apparently, they think net porn will only expand if given tacit approval, which is not the case. A suffix exclusively for porn has been described as a “red light district” for the WWW, which is preferable to everywhere being Hooker Alley, which is what’s going on right now. The FRC and other misguided folk can’t stop online porn; it will be around as long as the internet is around. What the .xxx domain can do is give end-users more power to block it.

Ideally, I would like to see the FCC — of either this administration or the next — regulate adult websites operating within the borders of the United States by giving them a deadline to transfer from the other domains to the .xxx domain, or face prosecution. This would not, IMHO, be an infringement of free speech, because nobody’s speech would silenced (as long as existing obscenity laws are obeyed). It would also allow consumers to choose via their ISPs whether or not they want the .xxx domain blocked, so everyone who wants to avoid porn (or continue to have the option of consuming all they want) to choose their internet services accordingly.

I know that operators of adult sites will squeal and whine about not being able to use the common .com suffix, but at the same time, they insist they don’t want minors to view their wares. I say they not only want minors to get hooked on porn, they need them to in order to recruit more young women into the business to meet demand and deal with an ever-increasing amount of competition. The proposed regulation will make them put up or shut up; if they REALLY want to pretend they only want mature adults to watch, they will not have a problem with giving parents a tool to keep their children away from it.

L.N. Smithee on June 27, 2011 at 1:23 PM

L.N. Smithee on June 27, 2011 at 1:23 PM

I saw that too. The FRC, unfortunately, seems to be taking the advice of fundies who think the Internet should look like a Norman Rockwell painting.

It’s long past time for the .xxx domain idea to go through…and to put some spine behind electronic laws. As in “try to sneak around the law, and you might just find your website erased and your servers confiscated.” It will do precious little good otherwise – you know how persistent the smutmasters are.

Uncle Sams Nephew on June 27, 2011 at 1:32 PM

Apparently you don’t or you wouldn’t use the term citizens. Permanent Residents are citizens, yet they have all the same rights as citizens except in an individual’s relationship with the process of governing.

Give me a break. That amounts to semantic hair splitting.

How are they severely limited? But I guess more interestingly, what part of “dictated by parents” don’t you agree with since you appear to prefer dictaed by government more than dictated by parents?

Reread what I wrote. I at no point did I advocate absolute bans or restrictions. I stated that I believe that a state has the authority to require explicit parental consent. In no way does that support the state dictating content over parents’ wishes. Furthermore, what I believe is in fact a more democratic process. Perhaps a majority of adults in a given state support explicit parental consent on a given product.

It’s interference in the freedom of the parent, isn’t it?

No it is not. First, I do not support such a law. I see no need for such a law. But that does not mean such a law is unconstitutional. But requiring explicit parental consent does not interfere with a parents ability to choose for their child. It simply bars a child from accessing a place or product on their own.

Does requiring parental consent here have some overarching issue related to public morals or public order that this type of law needs to be controlled by the state government? Please explain why the incorporation doesn’t apply in this case.

As I stated above believing in the constitutional ability to enact such a law does not mean I support such a law. I find no need to bar children, without parental consent, from a house of worship. But I do believe minors can be denied access to just about anything without explicit parental consent.

Incorporation is irrelevant. This about the rights of a minor in absolute terms. Take the 2nd Amendment as an example. Do you really believe that the SCOTUS would ever say that a minor cannot be denied the right to possess and bear arms by a state even though recent rulings by SCOTUS that incorporated the 2nd Amendment?

I would say that the 2nd Amendment is again a parental rights issue. I would argue that a parent should decide at what age and what freedoms a minor is granted concerning fire arms. But you will never convince me that the SCOTUS would ever go so far as bar states from restricting the sale of firearms to minors.

NotCoach on June 27, 2011 at 1:35 PM

You have to be a brain-dead libertarian in order not to see that the 9th and the SCOTUS regulated how voters can vote in laws about content that can be sold to kids.

This is small government in a way, but it’s purist theory-of-liberty crap in a complete other way.

Axeman on June 27, 2011 at 12:22 PM

You do realize that is the entire point of the Bill of Rights, correct?

It seems you think that by popular vote, the government can enact any law they want. Sorry, they can’t. Especially if it is contradictory to the Bill of Rights.

deadrody on June 27, 2011 at 1:36 PM

Wow. I actually disagree with this. In my view, the court took away the parents right to decide what their kids can buy and play.

El_Terrible on June 27, 2011 at 1:42 PM

Could you clarify that in terms of rule of law vs rule of the majority and where the dividing line is?

Dusty on June 27, 2011 at 12:32 PM

Ultimately that is the jurisdiction of the courts. But an ultimate jurisdiction should not mean that they should meddle without restraint in community decisions. It doesn’t speak for the judgment that we theoretically attribute to them. Simply because there is an ultimately conflict between rule of law and rule of the majority doesn’t mean that we should silence the majority anytime somebody’s extension of an academic principle is transgressed.

Remember, England has one of the best traditions of “rule of law”. “Taxation without representation” was an issue of our revolt. We flouted the de facto “rule of law” demanding an input from the colonies. Demanding that the rabble of the colonies have a better chance to sway the central government.

The Constitution of the United States was meant to provide a framework for a government that derives its powers from the “consent of the governed”. Not to provide a body of theories to allow know-it-all academics to extrapolate and leverage theories by which to reorganize our society.

Axeman on June 27, 2011 at 1:46 PM

It seems you think that by popular vote, the government can enact any law they want. Sorry, they can’t. Especially if it is contradictory to the Bill of Rights.

deadrody on June 27, 2011 at 1:36 PM

Minors are not adults. And if I and a majority of parents want our state legislature to enact a law restricting access to a good that certainly falls within an acceptable democratic norm as far as I’m concerned. Of course a state can never overrule a parent. But a state should certainly be allowed to require a parents’ approval.

NotCoach on June 27, 2011 at 1:46 PM

You do realize that is the entire point of the Bill of Rights, correct?

It seems you think that by popular vote, the government can enact any law they want. Sorry, they can’t. Especially if it is contradictory to the Bill of Rights.

deadrody on June 27, 2011 at 1:36 PM

You do remember the Bill of Rights are all amendments (that Madison questioned even needing). You do remember that those rights were restrictions of the federal government originally, don’t you? You remember one of them was reserving to the states what was not specifically prohibited by the Cons. proper?

You’re kind of back-filling to argue that the purpose of the Bill of Rights was to watch over the laws of the States in case they offend the new dogma.

That Constitution would never have been ratified. Of course it doesn’t surprise me that libertarians want to adopt a Camel’s-nose-under-the-tent view of legal opportunism.

Equating that the majority can’t enact any law that they want with the people making decisions that impinge upon the liberty of minors demonstrates a profound lack of judgment.

Axeman on June 27, 2011 at 2:02 PM

[Axeman on June 27, 2011 at 1:46 PM]

Well, that’s pretty clear and cogent and I agree with you here.

The one thing I’d point out though is your point that, “Simply because there is an ultimately conflict between rule of law and rule of the majority doesn’t mean that we should silence the majority anytime somebody’s extension of an academic principle is transgressed.”

I’d agree with this, too, but note that the majority wasn’t silenced, they only lost their argument. They had ample opportunity to craft the verbiage of the law, argue it, and pass it. There was dissent that passed up through (I’ll guess at least three, if not four federal) courts to test it via debate on the merits, etc, and the law was struck down by at least two of them — the 9th (not a good bet) but also SCOTUS.

Part of the problem as I see it is that the law sucked, not so much in purpose but in construction. The clowns that crafted it — this wasn’t the majority of the public if I’m not mistaken, but the legislature — didn’t do any due diligence to craft it in a manner that might garner a approve-able outcome. It doesn’t appear from the write-ups that CA did much of anything to address any long established hurdles in the law.

There is another point I see that has to do with timing but I don’t think it is quite as relevant with what we are talking about here.

Dusty on June 27, 2011 at 2:25 PM

good ruling. count one up for free speech

georgealbert on June 27, 2011 at 2:26 PM

Good.

Leave parenting to the parents, m’kay?

RedNewEnglander on June 27, 2011 at 2:40 PM

But do minors still need parental consent to buy those games? I don’t agree with states banning the sale of video games to kids under any circumstances. But after all, theatres can deny grade school looking kids R rated films if the parents aren’t with them.

Technically.

Mad Kimchi on June 27, 2011 at 2:42 PM

Admittedly, I never had more than a few dollars to spend at any give time, nor the ability to get to any store on my own until after I turned 18. But my childhood seemed abnormal in that respect.

Count to 10 on June 27, 2011 at 2:51 PM

Take the 2nd Amendment as an example. Do you really believe that the SCOTUS would ever say that a minor cannot be denied the right to possess and bear arms by a state even though recent rulings by SCOTUS that incorporated the 2nd Amendment?

[NotCoach on June 27, 2011 at 1:35 PM]

See this is the problem — you can’t differentiate between kinds and types in your comparisons. I was hoping you’d go with voting as that is especially delicious one to me.

But you picked the 2nd Amendment. This CA law did not pass the public order hurdle. In fact the majority didn’t think it even came within spitting distance of the obscenity (public morals) hurdle. That’s why the majority of justices didn’t countenance CA making sh$t up and, thus requiring onerous restrictions on freedom of individuals (those individuals being the parents, who as you note get to dictate what rights/freedoms their children have) because a majority of busybodies decided it would be cool to do so.

Dusty on June 27, 2011 at 2:52 PM

See this is the problem — you can’t differentiate between kinds and types in your comparisons. I was hoping you’d go with voting as that is especially delicious one to me.

But you picked the 2nd Amendment. This CA law did not pass the public order hurdle. In fact the majority didn’t think it even came within spitting distance of the obscenity (public morals) hurdle. That’s why the majority of justices didn’t countenance CA making sh$t up and, thus requiring onerous restrictions on freedom of individuals (those individuals being the parents, who as you note get to dictate what rights/freedoms their children have) because a majority of busybodies decided it would be cool to do so.

Dusty on June 27, 2011 at 2:52 PM

How was this an onerous restriction on parents? Did this law create an absolute ban on certain video games to minors? If so then I agree the law was wrong. But I do believe that a law that requires explicit parentel consent before a video game can be purchased is perfectly constitutional.

NotCoach on June 27, 2011 at 3:00 PM

FYI Gamestop bans the sale of games to kids based upon company policy, not any sort of law.

This probably won’t affect anything in the long run.

triple on June 27, 2011 at 3:39 PM

I like Halo…and the story behind it. great game and it was successful without the extreme violence and language.

Game designers can be more creative without being sadatious.

b1jetmech on June 27, 2011 at 3:53 PM

The notion that a 10 year old kid can walk into a store and legally buy rated M video games is very disturbing.

WisCon on June 27, 2011 at 3:53 PM

I don’t understand why this should be any different than movie ratings. If a parent wants to buy or rent GTA4 for his kid, then I’m definitely going to form an opinion of that parent, but it should still be his legal right. However, I don’t see how kids have a First Amendment right to buy GTA4 themselves when they don’t have the same right to buy cigarettes or duct tape. I mean, how are they supposed to pose in those H8 posters without the latter?

Also, I don’t get why sexual impropriety is given a special exemption. What are we saying about ourselves as a society if children aren’t allowed to view depictions of reproduction but can have an interactive experience where they murder the hooker they just bought and steal her money?

That just feels remarkably inconsistent.

Esthier on June 27, 2011 at 3:59 PM

I like Halo…and the story behind it. great game and it was successful without the extreme violence and language.

Game designers can be more creative without being sadatious.

b1jetmech on June 27, 2011 at 3:53 PM

Sure, there are great games without gore or gratuitous violence, but sometimes that’s a large part of the attraction. I wouldn’t let a kid play the newest Mortal Kombat or God of War 3, but there is something to be said for ripping off a god’s head and carrying it around with you whenever you need to blind someone.

Esthier on June 27, 2011 at 4:34 PM

Interesting, since Thomas has traditionally been the Free Speech libertarian on the Supremes.

NorthernCross on June 27, 2011 at 4:51 PM

Good for them. This nanny-state nonsense would have done very little good anyhow. Parents are the ones supposed to police kids, and any youngster with the faintest know-how can simply go and download what they’re forbidden to buy at the store.

Uncle Sams Nephew on June 27, 2011 at 1:11 PM

This. Parents should do the damn parenting of their childrens games, not the government.

mythicknight on June 27, 2011 at 5:14 PM

Does this affect 3 Stooges video games? Those are extremely violent.

Del Dolemonte on June 27, 2011 at 5:24 PM

How was this an onerous restriction on parents? Did this law create an absolute ban on certain video games to minors? If so then I agree the law was wrong. But I do believe that a law that requires explicit parentel consent before a video game can be purchased is perfectly constitutional.

[NotCoach on June 27, 2011 at 3:00 PM]

Ugh! For some reason my response hasn’t posted yet. I’ll just note here that yes the law did ban the sale/rental to minors and was silent on whether it could be sold to the minor in the company of a parent.

Technically and knowing the Nanny-staters in government who produced this law, I have little doubt they would use it’s silence on the latter as meaning they minors couldn’t buy it even in the company of a parent/guardian.

But there is more to it than that, NotCoach, as I hope my moderated comment will explain when it comes gets published.

Dusty on June 27, 2011 at 5:47 PM

The notion that a 10 year old kid can walk into a store and legally buy rated M video games is very disturbing.

[WisCon on June 27, 2011 at 3:53 PM]

But a 10 year old kid can go into a movie theater and legally watch an NC-17 movie. It’s just that the movie theaters police themselves (via MPAA) as do many video stores wrt to M rated (I suppose, I do not know what an M rating is) video games.

Dusty on June 27, 2011 at 5:53 PM

But a 10 year old kid can go into a movie theater and legally watch an NC-17 movie. It’s just that the movie theaters police themselves (via MPAA) as do many video stores wrt to M rated (I suppose, I do not know what an M rating is) video games.

Dusty on June 27, 2011 at 5:53 PM

“M” rating is roughly an “R” for movies, both of which are fairly common.

“AO” rating is roughly an “NC-17″ for movies. Finding one is near-impossible without purchasing it online with a credit card or PayPal.

teke184 on June 27, 2011 at 6:00 PM

That just feels remarkably inconsistent.

[Esthier on June 27, 2011 at 3:59 PM]

Well, except that it has been remarkably inconsistent for like hundreds of years. How long does an inconsistency have to exist for it to be consistent?

As for your comparisons, cigarettes have a clear and convincing health issue, so that meets the public harm exception. The research data doesn’t support claimed need wrt violent video games to carve out a new exception here.

I’m missing something on duct tape? I’m thinking that’s an urban myth; I don’t see anything from a quick search.

Dusty on June 27, 2011 at 6:03 PM

“M” rating is roughly an “R” for movies, both of which are fairly common.

“AO” rating is roughly an “NC-17″ for movies. Finding one is near-impossible without purchasing it online with a credit card or PayPal.

[teke184 on June 27, 2011 at 6:00 PM]

Thanks for that.

Dusty on June 27, 2011 at 6:07 PM

As for your comparisons, cigarettes have a clear and convincing health issue, so that meets the public harm exception. The research data doesn’t support claimed need wrt violent video games to carve out a new exception here.

Dusty on June 27, 2011 at 6:03 PM

I smoked cigarettes as a minor and never got addicted and it did no harm to me. Sorry this is not consistent. I do love all the twisting that can be done on such subjects.

CW on June 27, 2011 at 6:23 PM

[CW on June 27, 2011 at 6:23 PM]

Are you asserting there is no evidence of the deleterious health effects of smoking?

Dusty on June 27, 2011 at 6:41 PM

The problem with SCOUTS cases is that they are never simple yet people try to make them so and end up confusing the issue. Here is a bit more of that:

The government does not regulate the sale of books, movies or music to minors except in the case of pornography.

The state of California was/is trying to regulated the sale of video games to minors that are not historically considered obscene(pornographic).

The video game industry has been more successful in enforcing its own self regulation than both the music and movie industry (the publishing industry does not self-regulate its sales to minors AFAIK).

http://www.ftc.gov/opa/2008/05/secretshop.shtm

If you believe that violence should be considered obscene you should regulate all industries and must overcome this countries long history of exposing children to graphic violence (see: dime novels, Brothers Grimm, etc). With this SCOTUS ruling the only way to do that would be:

Create and pass a sufficiently narrow law that clearly defines the obscenity(which this law did not) and hope that it passes the scrutiny of the SCOTUS.

or

Pass a constitutional amendment that excludes violent media from the first amendment.

EconomicPirate on June 27, 2011 at 6:42 PM

Good.

It is the job of parents to determine what their children may or may not purchase or experience, not the job of the state. How many times do we have to go through this to figure it out? Music, movies, books…hopefully video games will be the last time we have to deal with this nanny state/lazy parent bulls**t.

MadisonConservative on June 27, 2011 at 11:02 AM

Exactly! The problem is with parents who aren’t there. It’s not the games. I grew up playing games (most of them war games), but had a great family dynamic. I turned out fine.

Cr4sh Dummy on June 27, 2011 at 7:11 PM

Are you asserting there is no evidence of the deleterious health effects of smoking?

Dusty on June 27, 2011 at 6:41 PM

Is that what I said? Sheesh this is tiring.

The point is that I smoked and drank and did not get sick. I did not get hooked. All as a minor. We all know that some of you can twist and twist some more but with the court’s thinking kids should not be restrained in any purchase that an adult can make. Well if you want to be consistent.

CW on June 27, 2011 at 7:17 PM

The government does not regulate the sale of books, movies or music to minors except in the case of pornography.

EconomicPirate on June 27, 2011 at 6:42 PM

After this ruling I don’t see how they can regulate porn being sold to minors. How does seeing boobies hurt anyone?

CW on June 27, 2011 at 7:19 PM

If you believe that violence should be considered obscene you should regulate all industries and must overcome this countries long history of exposing children to graphic violence (see: dime novels, Brothers Grimm, etc). With this SCOTUS ruling the only way to do that would be:

Create and pass a sufficiently narrow law that clearly defines the obscenity(which this law did not) and hope that it passes the scrutiny of the SCOTUS.

or

Pass a constitutional amendment that excludes violent media from the first amendment.

EconomicPirate on June 27, 2011 at 6:42 PM

That is what the liberal-liberaltarian coalition is going to force us to do: pass more amendments. I don’t mind that, because it seems to be emerging as the only check against the expert class having the last word on everything.

Your concept is rather simple. If I’m agin’ violence, then pass a law that jumps through the right hoops to make the SCOTUS concur, hope that I’ve said the right shibboleths and said “Mother, may I”s and if that doesn’t fix it pass an amendment.

If the SCOTUS finally decides with Obamacare’s use of the Commerce clause, they will have some argument. Will it be proper? And just because you always have the recourse to the amendment process (until they decide that it just doesn’t apply without the right shibboleths), does it make any torturous decisions of the SCOTUS “right”?

So the idea is that we wage crusades through the Constitution instead of empowering communities to make their own decisions where there is no direct restraint of speech or press.

Look I understand that the libertarian ox wasn’t gored here. I don’t expect you to weep and moan. My main interest isn’t in banning the sale of violent games, either. Just slowing the ever-expanding jurisdiction of the expert class.

Your “argument” that banning graphically violent interactive games for sale to minors is the same thing as Brother’s Grimm tales and pulp novels really marks a confusion that you resolve with simple categories.

Axeman on June 27, 2011 at 8:34 PM

Technically and knowing the Nanny-staters in government who produced this law, I have little doubt they would use it’s silence on the latter as meaning they minors couldn’t buy it even in the company of a parent/guardian.

Dusty on June 27, 2011 at 5:47 PM

Your definition of “silence” is pretty pathetic, if all that has to be done is hand the money to the parent. There is no reason why a child has to buy M-rated games if they are accompanied by an adult.

This argument is an insult to anyone who has actually had their speech or publication actually suppressed.

Axeman on June 27, 2011 at 8:41 PM

So, if the video games showed gays being killed and minors were watching it, would the SCOTUS be as happy?

Restricting what kids are exposed to is common sense.

Violence is more repellent than sexuality.

Clearly the SCOTUS wants kids exposed to hideous carnage.

Thrill Kill Splatter House Brilliant.

profitsbeard on June 27, 2011 at 8:44 PM

Is that what I said? Sheesh this is tiring.

The point is that I smoked and drank and did not get sick. I did not get hooked. All as a minor. We all know that some of you can twist and twist some more but with the court’s thinking kids should not be restrained in any purchase that an adult can make. Well if you want to be consistent.

[CW on June 27, 2011 at 7:17 PM]

Then what was your point of your drivel about you smoking as a kid? That we should base law on your actions and the consequences thereof and ignore basic scientific evidence? That consistency in the law is not a good? That having a basis for establishing a law is not important?

And I let your stupid twisting remark alone the first time but what the hell is your point there? Do you even know what my position such that I am twisting information to suit my position? And if so, how am I twisting it?

Really, I have no clue what the h$ll the point was for your comments.

Dusty on June 27, 2011 at 9:09 PM

Your definition of “silence” is pretty pathetic, if all that has to be done is hand the money to the parent. There is no reason why a child has to buy M-rated games if they are accompanied by an adult.

This argument is an insult to anyone who has actually had their speech or publication actually suppressed.

[Axeman on June 27, 2011 at 8:41 PM]

I have no definition of silence, but I did use the term as it was used by legal scholars in describing the failure of the law to be clear on this point their background for the legal challenge. Sure, the kid could hand the money to a parent and have them buy it. But does that assure the seller that he won’t be fined if happens to be some some nanny-state activist with a surrogate child looking to chill legitimate sales by wreaking havoc in the system because of the ambiguity of the law?

Your point is not only an insult to common sense, it’s contrary to the crux of the issue contested in the legal challenge, which was, specifically, about having “speech or publication actually suppressed” by this law. And if retailers are afraid to sell these video games for fear of being fined, is that not effectively the same thing?

Dusty on June 27, 2011 at 9:26 PM

I see some people are a little bit confused about what this decision entailed, so hopefully this will clarify it a little bit. The SCOTUS decision stopping the CA law doesn’t affect how business with the game industry has been happening. That is, that this law was struck down doesn’t mean that kids can go and get an M rated game right now.

Almost 20 years ago the game industry self- imposed the ESRB, a privately funded entity that rates games based on content. On top of this all retailers enforce these ratings and have been requiring ID to customers if there is any question about age. The ESRB has worked extremely well since it’s inception.

What the CA law was about was a) creating new bureaucracy to administer something that is already administered, and b) to move under local government control something that is currently under private sector control. All this started by a representative that doesn’t think parents can say no to kids (much like the ban on Happy Meals or fast food permits). Just a Nanny State law in disguise to “save the children”.

In short, that’s the deal here: no, the SCOTUS decision doesn’t mean that kids will be able to go out and buy mature games. It just means that the ratings and regulations that have been in place for almost two decades and that limit the access of kids to age proper games will remain under private sector administration, as it has been all this time, and under the individual responsibility of parents.

ptcamn on June 27, 2011 at 10:37 PM

And if retailers are afraid to sell these video games for fear of being fined, is that not effectively the same thing?

Since this law has never been in effect that’s a pretty thin hypothetical. Is porn a loser simply because it’s not sold to minors–what about liquor?

They would be afraid to sell to the adult living in their parents’ basement crowd. It was the X-box’s commitment to M-rated games that made the X-box a top seller to the mature gaming crowd. The larger, family-oriented market went to the Wii. But the X-box has done fine in its niche, all the same.

Meanwhile the court has given the rest of the ever-busy litigious world another bit of silly putty to play with and the right of self government only last so long as it takes the courts to think up a reason not to allow a community to do something.

Axeman on June 27, 2011 at 10:42 PM

I have no definition of silence, but I did use the term as it was used by legal scholars in describing the failure of the law to be clear on this point their background for the legal challenge.

No, you didn’t you used silence in the case that a child, with parent in tow could not buy the game. That’s a pretty paltry definition of silence, IF all that has to be done is for the parent to pay for the game, thus signalling consent.

Axeman on June 27, 2011 at 10:45 PM

In short, that’s the deal here: no, the SCOTUS decision doesn’t mean that kids will be able to go out and buy mature games. It just means that the ratings and regulations that have been in place for almost two decades and that limit the access of kids to age proper games will remain under private sector administration, as it has been all this time, and under the individual responsibility of parents.

ptcamn on June 27, 2011 at 10:37 PM

I have no problem with that. What I have a problem with is further calcification of the Incorporation logic, when states apparently unwittingly signed away their ability to make law. It’s just taken us 100+ years to realize that the original intent of the 14th amendment was that the states were tired of making their own laws. But the most expansive thing they ratified that amendment for was “equal protection”. However it’s hard to find an equal protection angle here, either of minors–who are unequally treated in many other ways, or of corporations to have at least theoretical access to kids.

I certainly hope the SCOTUS decision doesn’t go this way, but perhaps it will take the finding for the all-powerful commerce clause in Obamacare to disabuse people of whether these decisions quell nanny-state government-ism or simply expand the amount of the discretion of the judiciary over all matters. What is our hope in now? Sound judgment? Nope. That Anthony Kennedy will hear the argument that he is looking for to side against mega-nanny.

Conservatives used to stand against the ever-expansion of the “Incorporation clause”, now Scalia practically invokes it, despite however much an over-broad use flouts the idea of “original intent”. And while we pin our hopes Kennedy, who once decided that absent a national referendum on capital punishment, he could count up all the states and decide in a virtual majority of three parties. Banding those states who thought that capital punishment was “cruel and unusual” in any form with those states who didn’t, but didn’t execute minors and the states who also didn’t, but executed minors as adults. And argued that this novel construct was a basis to decide “evolving mores”.

Axeman on June 27, 2011 at 11:16 PM

For those of you saying that your 10 year old kid can’t go the store alone and doesn’t have enough money anyway:
1. Physical stores won’t sell games 10-15 years from now. I’m guessing that the Playstation 5 and Xbox 4 won’t even use physical media for games.
2. You can download violent video games off the internet for free. Legally. From Doom shareware to the now free to play Team Fortress.
3. A ton of independent games don’t use the ESRB rating system, primarily those sold only online.

I agree with the Supreme Court decision.

yelnats on June 27, 2011 at 11:57 PM

“Since this law has never been in effect that’s a pretty thin hypothetical.”

[Axeman on June 27, 2011 at 10:42 PM]

Funny, but that (the chilling effect on free speech due to the ambiguity of the law) was one of the bases for having the law blocked and challenging it’s Constitutionality.

Alito, concurring …:

“Due process requires that laws give people of ordinary intelligence fair notice of what is prohibited. Grayned v. City of Rockford, 408 U. S. 104, 108 (1972). The lack of such notice in a law that regulates expression “raises
—————— 1It is well established that a judgment may be affirmed on an alter-native ground that was properly raised but not addressed by the lower court. Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U. S. 463, 478, n. 20 (1979).
Cite as: 564 U. S. ____ (2011) 3
ALITO, J., concurring in judgment
special First Amendment concerns because of its obviouschilling effect on free speech.” Reno v. American Civil Liberties Union, 521 U. S. 844, 871–872 (1997). Vaguelaws force potential speakers to “‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.” Baggett v. Bullitt, 377 U. S. 360, 372 (1964) (quoting Speiser v. Randall, 357 U. S. 513, 526 (1958)). While “perfect clarity and precise guidancehave never been required even of regulations that restrictexpressive activity,” Ward v. Rock Against Racism, 491
U. S. 781, 794 (1989), “government may regulate in thearea” of First Amendment freedoms “only with narrow specificity,” NAACP v. Button, 371 U. S. 415, 433 (1963); see also Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982). These principles apply to laws that regulate expression for the purpose of protecting children. See Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 689 (1968).
Here, the California law does not define “violent video games” with the “narrow specificity” that the Constitution demands. ….”

There would be three areas where this is ambiguity would/could cause such a chilling effect all because the law leaves too much to interpretation of it:

1) Development of the games,
2) Sale of the games, and
3) Purchase of the games.

I concentrated on 3) because the discussion was here was focused on parental consent, which the law does not cover, or as I noted, was silent on whether it was legal or not for the games to be sold to a minor with the consent of the parent.

BTW, all your anecdotal evidence with x-box wii etc, was in the absence of these laws and as you say, it worked out okay according to you, which is why the Court pointed out that the CA law did not craft the legislation in a manner to minimize it’s intrusion of people’s rights.

Dusty on June 28, 2011 at 12:50 AM

No, you didn’t you used silence in the case that a child, with parent in tow could not buy the game. That’s a pretty paltry definition of silence, IF all that has to be done is for the parent to pay for the game, thus signalling consent.

[Axeman on June 27, 2011 at 10:45 PM]

Like I said, that point was raised in background for the case. It’s here at SCOTUS Blog, “Minors under 18 may not buy or rent such games; the law does not say whether a minor accompanied by a parent could do so legally.”

They thought it significant to mention. There’s no mention of a parent being able to purchase it for the child. Why would anyone even bother mentioning the former method if the latter method is easily workable? I’d note if you read the SCOTUS Blog backgrounder, you’ll find the the proponents of the law didn’t even bring up supporting parental authority as a defense for the law until it reached SCOTUS. Everything up to then was argued as it being harmful to the child and discretion wrt to parental authority was irrelevant. Why was parental discretion/authority/consent not clearly covered in the law?

Dusty on June 28, 2011 at 1:12 AM

After this ruling I don’t see how they can regulate porn being sold to minors. How does seeing boobies hurt anyone?

CW on June 27, 2011 at 7:19 PM

No offence, but this is where the first part of my post comes in. SCOTUS rulings are never sufficiently broad enough to cover the issues many people seem to think that they cover. The intricacies of any given case always severely limit the breadth of a ruling. Remember, the SCOTUS does not judge policy, it judges individual cases.

The court has a long standing ruling of limiting the rights of any group (minors for instance) for very specific and very narrow categories. California was trying to regulate “violent” video games, a term way too broad.

By one study Pac-Man was 100% violent because you spent the whole game either chasing or being chased. Is that the sort of scrutiny by which we wish to limit our freedom of expression?

However for pornography the court has time and time again held up the long standing tradition of treating that narrow and very specific form of expression as being obscene.

The ruling does not allow minors to purchase what is legally prohibited to them because of obscenity, it simply rejects California’s attempt to categorize a very loose definition of “violent” video games as obscene.

EconomicPirate on June 28, 2011 at 1:22 AM

Your “argument” that banning graphically violent interactive games for sale to minors is the same thing as Brother’s Grimm tales and pulp novels really marks a confusion that you resolve with simple categories.

Axeman on June 27, 2011 at 8:34 PM

If only the California law was that specific.

I havent had time to read the opinions yet, but from what I know of the case here is why I think the law should be struck down:

A) It did not sufficiently define what type of media it was limiting. Under the law, is blood ok? What if it is a different color such as green? Can you kill aliens? What about a boxing game? Can you no longer have on the ice fights in hockey video games? The law did not answer any of those questions. It is too broad both in terms of regulatory power that it grants and in terms of not properly defining what types of content is illegal for future development of video games.

B) Our society both does not have a history of or believe (in sufficient majorities) that any type of violent media should be classified as obscene. As much as people like to think that the SCOTUS constantly creates new law and overturns long national social histories, (for the most part) it is consistent with its rulings since the founding.

C) The law chose the wrong target. If you compare the video game industries success at self regulation to the total failure of the music and movie industries you will see that the last industry you should be trying to point out as failing to live up to its own social contract with the public is the video game industry. If you have an issue with steroids in professional sports you dont go after the guy who smoked a joint in high school.

In a democracy you must secure the rights of the many and the few. In my opinion if you want to both secure the rights of the people as well as leave society the tools to properly regulate itself when it sees fit you must have a super majority like system in order to impose those regulations. Luckily we do – its called the amendment process. Our society passed an amendment by this super majority like system restricting the government from limiting freedom of speach/expression/etc. If you want to overturn that, change societies mind.

EconomicPirate on June 28, 2011 at 1:50 AM

it simply rejects California’s attempt to categorize a very loose definition of “violent” video games as obscene.

Two of the justices rejected the California law because it was too broad. Five of them didn’t think any amount of violence could be used as a justification to block games.

yelnats on June 28, 2011 at 2:06 AM

For those of you saying that your 10 year old kid can’t go the store alone and doesn’t have enough money anyway:
1. Physical stores won’t sell games 10-15 years from now. I’m guessing that the Playstation 5 and Xbox 4 won’t even use physical media for games.
2. You can download violent video games off the internet for free. Legally. From Doom shareware to the now free to play Team Fortress.
3. A ton of independent games don’t use the ESRB rating system, primarily those sold only online.

I agree with the Supreme Court decision.

yelnats on June 27, 2011 at 11:57 PM

I understand you are saying this more as a devil’s advocate rather than against the SCOTUS ruling. Yet, it would be important to make a few distinctions in regards to your points:

1. While this might be true (who knows what new media will be available by then), assuming that the current model continues as it is nowadays (download) there are many barriers to prevent a kid from buying anything freely. For example, currently both the Playstation Network (on Playstation 3) and Xbox Live (on Xbox 360) give you the ability to create a master account for the parent and sub accounts for the kids. The sub accounts can be as limited as the parent wants it to be to the point of denying all purchases unless you go through the master account. If you are the parent you just set all the limits and filters to high for the kid’s account and don’t reveal the password to him/her. No matter what medium we have in the future, these measures will always be implemented one way or another.

2. It is true there are free to play games on the internet. However, many (if not most) of them are either illegal copies posted by an individual, a shareware game created by an individual and copying an existing game, or an aspiring game developer or fan creating their own game. The percentage of free to play games from genuine developers is not as massive as it sounds, and most of the time it is done for promotional purposes where you still need to sign up for a service, free as it might be, in order to access the desired game.

But, sticking to the idea that there are freely available games out there, we come down once again to the parent factor: if you don’t know what you kid is doing when he/she is in front of the computer, you are not doing your job. And with the number of predators online and in social networks, free violent games would be the least of your problems as a parent.

It is important to also point out that the CA law would not have affected these readily available free games but rather only those produced by actual developers (big and small) commercialized through proper channels.

3. True- many independent developers that don’t go through a publisher won’t have their games rated by the ESRB. With that said, you won’t find these games on the Playstation Network, or Xbox Live. And while not ruled by the ESRB, even the APP Stores for Apple and Google have age warnings (and if you gave your kid an Iphone you definitely trust your kid, IMO). Those games without any rating are usually limited to the PC and if they require pay you will need a credit card or PayPal account, in which case we go back to points 1 and 2.

Now, to be fair, the ESRB was a system that the publisher based gaming industry (Sony, Nintendo, Sega, Electronic Arts, Atari, etc) self imposed in the early to mid 90′s as a way of better communicating to parents what products were appropriate for kids and teenagers. Unlike a “law”, this is not an imposition but rather a way to offer confidence and trust to customers.

Anyway, it seems you are well versed with the gaming industry. I just felt the need to elaborate for anyone who doesn’t follow the industry as close that may have some doubts about the ruling or the so called “violent games”.

ptcamn on June 28, 2011 at 4:48 AM

I was just pointing out that the law would have had little to no effect in changing the exposure minors get to violent video games (negating the whole point of the dissenters argument).

XBOX Live does sell games without ESRB ratings, in its indie games section. These are all blocked if any parental ratings controls are on, though.

Many of the biggest PC FPS developers have free to play games: id with Quake Live, Valve with Team Fortress 2, EA with Battlefield and the US Government’s own America’s Army. These aren’t the most violent games, but they all depict the killing of other humans.

Also, all of the games mentioned in the dissenters’ opinions as the worst games were all Mods (many unreleased) and non-ESRB games that wouldn’t be sold at retail anyway.

yelnats on June 28, 2011 at 9:38 PM

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