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Supreme Court Takes Up First Amendment Video Game Case


Posted by Kelly William Cobb on Tuesday, November 2nd, 2010, 5:15 PM PERMALINK


Advocates of government intrusion into parental decisions, like Hillary Rodham Clinton, say that “it takes a village” to raise a child; that without government regulations, families cannot adequately bring up children.  This is the premise of a California law being reviewed by the U.S. Supreme Court today, which would ban the sale of “violent video games” to minors.  Laws such as these no doubt have good intentions, but they raise serious First Amendment and practical concerns, in addition to costing taxpayers large sums of money.

The case of Schwarzenegger v. EMA centers on whether government can exempt some video games from First Amendment protections.  While a ban on the sale of content (books, movies, video games, etc.) to adults is unconstitutional, California and others have argued that video games have an affect on minors that gives government the ability under current legal precedent to restrict sales.  Yet, to date, every court that has taken up the issue (at least eight state courts and a multitude of localities) has rejected these arguments, shooting down the law on First Amendment grounds.

From a taxpayer advocate’s perspective, the video game laws have become incredibly costly.  Each time a case is brought to court, taxpayers are forced to foot the bill for state Attorney Generals to defend the law – to the tune of over $2 million to date.  Meanwhile, California has been defending this case while struggling to solve a $19 billion overspending problem, which is poised to reemerge after the budget passed with gimmicks and federal funds.  Former Utah Governor Jon Huntsman rightly vetoed a law similar to that of California’s last year due to the expected cost.

From a limited government perspective, the law assumes that governments – not parents – are best suited to raise children.  Such laws effectively nullify customizable parental controls, handing politicians and bureaucrats the authority to insulate children from inappropriate content as they see fit.  Yet, the free-market has already brought about parental controls on gaming consoles and the Entertainment Software Ratings Board (ESRB), which places ratings and content descriptions on video games.  These allow parents to better choose what games are most appropriate for their kids without a one-size-fits-all government regulation.  For example, ESRB has seven age ratings and thirty content descriptors, eight that describe a specific type of violence.  Yet, under California’s law, government regulators would place only one age descriptor (“18”) on a game’s case, and which of the eight descriptions of violence would they choose?

There also are numerous practical and legal problems with implementing video game bans.  As argued in our joint amicus brief with the Center for Democracy and Technology and others, the case has profound implications for online gaming, which is quickly replacing physical game purchases at brick-and-mortar stores.  The California law specifically targets physical video games, which means it is either ineffective for online gaming or would be expanded in the future to apply to online games.  Yet, online age verification systems are highly difficult to implement and easy to subvert.  Further, it would require all gamers (including adults) to verify age, another First Amendment constitutional violation.

The Supreme Court’s review could be the final decision that ends the onslaught of laws and lawsuits on the state and local level.  Whether it is a clear win for parents and limited government advocates or for government bureaucrats remains to be seen.

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