California Video Game Law: Heading to Supreme Court?

The 9th U.S. Circuit Court is not expected to rule immediately on today’s hearing in which California appealed a lower court decision that invalidated the state’s 2005 video game law.

But a well-informed source who attended the proceedings told GamePolitics that the case looks as if it will ultimately be decided by the U.S. Supreme Court. If so, it would be the first time the highest court in the land has considered a video game issue.

Reports by media observers in attendance support the notion that whichever side loses will appeal to SCOTUS. From the Associated Press:

Appellate Judge Consuelo Callahan said upholding California’s law would mark a significant expansion of the kind of material that federal courts have traditionally regulated…

California Deputy Attorney General Zackery Morazzini urged the panel to take that step. He said states have every right to help parents who want to keep their children from playing violent video games. The U.S. Supreme Court already has limited sexually explicit material from children. Violent video games are just as obscene, Morazzini argued.

"I believe the Supreme Court has left that door wide open," he told the panel.

The San Jose Mercury-News reports that the Circuit Court judges seemed inclined to uphold the lower court’s 2007 injunction against the California law:

A three-judge panel of the 9th U.S. Circuit Court of Appeals expressed concern that the state’s anti-violent video game law runs afoul of the First Amendment… While the 9th Circuit judges did lend some support to the state, they were generally skeptical the law can survive.

"What you are asking us to do is go where no one has gone before,” Judge Consuelo Callahan said to the state’s lawyer. "Admittedly, [the violent video games] are disgusting. But aren’t you just trying to be the thought police?”

San Francisco’s ABC-7 covered the hearing with reporter Terry McSweeney interviewing State Sen. Leland Yee (left), author of California’s bill. Jennifer Mercurio, an attorney with gamer advocacy group the Entertainment Consumers Association (ECA), is quoted by ABC-7:

The way this law is drafted comes up against hundreds of years of First Amendment issues.

McSweeney ended his video report with this commentary:

Both sides agree that whoever loses is going to appeal this thing and it’s going to end up in the U.S. Supreme Court.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

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  1. Bigman-K says:

    That is so true, it’s sad. Parents would rather let the government take over then raise and take responsibility for their own children. A lack of common sense as well as laziness is what it is.


    "No law means no law" – Supreme Court Justice Hugo Black on the First Amendment

  2. transformergirl says:

    Thanks. It’s a matter of common sense, but as one of my teachers said: "There’s no such thing as common sense anymore."

  3. Bigman-K says:

    Kudos, that was a great reply. There is nothing in the constitution that bars PARENTS from deciding what Free Speech media their children can or can’t have as long as they still live in their parents home but it is the sole responsibility of parents to make sure their children aren’t getting ahold of media they find innapproriate or unsuitable for them whether it be GTA games, Scarface DVDs, or even the Holy Bible. If parents need the government to come in and help them with keeping thier children away from Free Speech media they don’t want them to have then wouldn’t we have to bar the sale or dissemination of the Holy Bible to minors also seeing as Atheist, Jewish, Muslim or Hindu parents wouldn’t want their kids to get ahold of it. It creates a huge slippery slope that never ends.


    "No law means no law" – Supreme Court Justice Hugo Black on the First Amendment

  4. transformergirl says:

    "He said states have every right to help parents who want to keep their children from playing violent video games."

    …So, does that mean parents can’t take, like, two minutes to look at the content summary or rating on the box now? Mine did, when I was younger. We actually had discussions about the content in some of the games before they were even bought (Doom comes to mind). I’m 22 now, but as I’m a poor college student, I still live at home with the folks…and we still have discussions about videogame content. Though it’s more about what I should hide when their friends’ younger kids come around, but the point is they’re still plugged in and have taken an interest. My parents’ friends ask me all sorts of questions about games (what is appropriate, etc.) so they can understand what their children want to buy.

    Then it comes down to the question of "Who buys the games?" Certainly, the children probably get allowance, b-day money, christmas/hanukkah/kwanzaa/easter/which-ever-other-holiday-I-missed money to buy games. Mine always monitored what I spent it on (they checked the shopping bag before I could open merchindise to use). If they deemed it inappropriate, back it went for a refund or an exchange. If games are gifts, parents need to talk to the gifter if it’s not appropriate for the child and request a gift/original receipt to exhange it for something else.  If the parents are buying the games, they need to actually look at the rating or content summary on the box. If they don’t understand, they should ask a sales associate or put off buying it until they understand what the game is about.

    What if it’s already open and can’t be taken in for an exhange/refund? Simple, take it away. As in, out of the house…don’t hide it or lock it up, because I can guarantee that kids will find the game and somehow get it if it’s in the house. Take it to a used gamestore for credit or trade-in for an appropriate game (if nessacary, note that this is an extreme measure). If it’s a friend’s copy, take it back to the friend’s house and explain to his/her parents why you don’t want your child playing the game in your house.

    Will these actions make kids mad at their parents? Yeah, but they’ll eventually get over it. If kids feel so strongly about playing a game, perhaps parents should discuss why they(the kids) want to play the game instead of saying the worn out ‘because I said so’. With the reason explained, parents should explain why the game isn’t allowed to play in the house. This is only a suggestion…parents can still just stomp their foot and say "because I said so!" XD

    I know there are some games kids shouldn’t have access to untill they are older or unless the parents,themselves, have decided otherwise. But making a law to  "help parents who want to keep their children from playing violent video games" is just lazy. I understand that some parents give in to keep their kids from whining, then throw a hissy fit when they learn the content, but whose fault is that? Not the government’s.  Parents need to get plugged into what their children like to play, it can make a world of difference.

  5. Solipsis says:

    I liked how the judge agreed that the violence was disgusting. *sigh* It doesn’t look like she’s going to let that impede her legal judgement, but still…

    I’ll be glad when the technology generation starts getting seats on benches.

  6. UhhKris says:

    "Violent video games are just as obscene, Morazzini argued."

    I love how every politician you meet thinks that their opinion is a proven fact.

    It’s not.

    Get over yourself, opinionated douche. Parents don’t need help keeping their kids from playing violent games. Parents need to just get off of their asses and monitor what their kids do. Jesus, this country is getting lazy.

  7. M. Carusi says:

    Smile Californians, these are your tax dollars at work.

    When are Yee and Schwarzenegger going to take a hint?  No judge is going to admit that law like this is constitutional.  H/she would be vilifying him/herself in front of the entire legal community, not to mention going against the Constitution.

    M. Carusi

    Capitol Gaming

  8. Deamian says:

    Sooo.. instead of letting the parents learn on their own to be parents, and see which game is appropriate or not, they need the government to tell them what to think… Good idea, yeah.

    Look at the country moms and dads of america, look at what the government did. You want your kid to look like that? :S

    May have misread and missed it, but we’re having a violence + video game newspost here, shouldn’t have that been enough to summon JT and his witty comments from Beyond by now?

  9. Wraith108 says:

    One possibly good offshoot of this is that if the SCOTUS does make a ruling in the industry’s favour then we might see less politicians wasting time and money on censorship bills.

  10. JustChris says:

    Studies schmudies. Real-world happenings are more convincing than synthetic ones. Studies may be more verbose in the amount of information but they hardly replicate the mental conditioning that actual criminals undergo.

  11. GoodRobotUs says:

    Weren’t those results also highly dubious in nature anyway? I seem to recall something about the fact those tests weren’t actually conducted, but the results were from another test performed elsewhere?

  12. Andrew Eisen says:

    "What we are going to argue is that in fact there is sufficient data that demonstrates that there is a connection between the ultraviolent video games playing and actual behavior. And that’s what we are going to establish in the Ninth Circuit Court of Appeals," said State Senator Yee.

    Sorry Yee but an unspecified increase in aggressive behavior (which is not even defined) does not constitute harm to children.

    "Maybe a state will say we shouldn’t let you sell, without a parent’s permission, books about homosexuality or sex education or birth control," Paul Smith, the industry’s attorney, told reporters after the hearing. "I think it’s a very scary prospect."

    Very scary indeed.  And just in time for Halloween!


    Andrew Eisen

  13. Solipsis says:

    "If it is found that such exposure is indeed harmful . . . . . . . . . . . . . "

    Even if it may be found harmful in the future, it certainly has not as of now.

  14. Rodrigo Ybáñez García says:

    They have tryed to connect real life violence with violent media for almost 50 years and they have failed again and again. Videogames will not be the exception.

    My only concern is that there are too many idiots in politics today. And they have so much power in their hands.

    The cynical side of videogames (spanish only): My DeviantArt Page (aka DeviantCensorship):

  15. BearDogg-X says:

    Plus, the Supreme Court hears only 2% of all cases brought before them.

    As you’ve said, SCOTUS would only hear it if the circuit courts of appeals are split on the issue at hand. So should California lose the appeal(looking more likely), that’s 3 circuits in agreement(not including the 6th Circuit’s rejection of the civil suit filed by Jacky Boy after the Paducah school shooting). With no split, California would be wasting its time and taxpayer money.

    Also, isn’t Arnold up for re-election soon? When the appeal fails and Arnold’s no longer governor, would the next governor say no to another appeal?

    Back in Black from a forced hiatus by Hurricane Gustav.

    Proud supporter of the New Orleans Saints, LSU, 1st Amendment; Real American; Hound of Justice; Even through the darkest days, this fire burns always

    Saints(3-4), LSU(7-0)

  16. illspirit says:

    Indeed. And with Kozinskion the panel, we’re already half way to winning. Not sure about the other two though (or the full court if/when there’s an en banc appeal), but I’m guessing this probably won’t end in a Circuit split.

    Kind of a shame, really. I was hoping this would reach SCOTUS so we could end the shenanigans once and for all. It would also be nice to get something there before Obama has a chance to start nominating Justices. If it got there now, a win for us would be all but guaranteed. Should some of the more classical-ish liberals like Ginsburg retire and get replaced by social engineering do-gooders like, say, Cass Sunstein, who knows how it could end up..

  17. JDKJ says:

    If he wins before the Ninth, why would he still be interested in arguing his case in D.C? He’d already have what he needs: a ruling that his law is constitutional. He’d only be going to D.C. to defend his win. He’d have everything to lose and nothing to gain in doing so. 

  18. Rennie Davis says:

    Regarding "Heading to the Supreme Court," remember that the U.S. Supreme Court decides which appeals it will hear (in legalese, "grant certiorari"). Unlike this appeal, which is from a U.S. District Court to a U.S. Court of Appeals and which the Ninth Circuit was obligated to hear, the Supreme Court can decide not to take up the case.

    Under the Court’s rules, it only takes up an appeal for compelling reasons. While the Court can determine what is "compelling," there are four traditional reasons the Court agrees to review a case. For our purposes, the most significant of these is whether there is a "split in the circuits," that is one (or more) court of appeals has ruled one way and one (or more) courts of appeal have ruled another way. (The other three would not seem to apply to this case: an egregious error in a judicial proceeding; an important issue of federal law; or a lower court decision that directly conflicts with a Supreme Court precedent.)

    Thus far, two circuits — the Seventh and the Eighth — have struck down these types of laws. If the assumptions in the reports are correct and the Ninth Circuit strikes this one down as well, there will be no split in the circuits. The Supreme Court, IMHO, would therefore be unlikely to take the case in that instance.

    However, if the Ninth Circuit rules for California, then there would be a split in the circuits, making it likely the Supreme Court will take the case. (If the Ninth Circuit agrees with the state’s imaginative argument that violence can be obscene, I would assume the industry would also argue the Court should hear the appeal because it conflicts with Supreme Court precedent that says obscenity must involve sex.)

    And remember, the U.S. Supreme Court declined to review the Indianapolis and the St. Louis County video game cases.

    Bottom line, as much as Leland Yee would like to get this law before the U.S. Supreme Court, it seems unlikely unless he wins in the Ninth Circuit.


  19. Vake Xeacons says:

    Oh, but kids can’t vote so they’re not covered by those rights, right? RIGHT?!

    “Besides, the 1rst Amendment says ‘Congress’ can’t pass laws like this. We’re the state government.” This has nothing to “helping parents.” It’s politicians and lawyers.

  20. JDKJ says:

    I ain’t feeing ya on that. Pornography is protected speech under the First Amendment but prohibiting minors from purchasing pornography has been upheld as entirely constitutional. The mere fact that a form of speech is protected by the First isn’t the end of the analysis. The question is whether (a) the goverment’s interest in limiting the availability of the protected speech is of sufficient weight and (b) whether the means of limitation are no greater than neccessary to further the interest. If the state can satisfy both (a) and (b), then the limitation passes constitutional muster.

  21. King Droid says:

     Video Games ARE covered by the first admendment. In fact, saying children can’t buy M-Rated games is against the law as it is. 

  22. Tomatoisjp says:

    One would think, but I could have sworn I saw an instance of someone blatently and repeatedly ignoring it anyway… can’t remember where though.

  23. Adamas Draconis says:

    I may be mistaken, but aren’t lawyers required to have at least a general understanding of constitutional law?

    Hunting the shadows of the troubled dreams.

  24. Dragunov765 says:

    Does this mean they’re going to ban the sale of violent movies in California, too?  How ’bout comic books, Stephen King novels and cable TV?  Minors have just as much access to those as they do video games.

  25. E. Zachary Knight says:

    From what I have read of most game cases, is that the game industry’s cases had two things as their primary defense. First is the 1st amendment. Video games are a form of speech and expression and cannot be regulated because of that.

    The other is the 14th amendment stating that under that amendment you cannot treat two mediums differnetly. Basically, stating that if they think violence is so bad for kids why target just video games. After all, kids can dwell just as much on the violent content of a book or movie as they could on a game. If they really were concerned about kids getting ahold of violence, they would seek to blanket regulation on violent media.

    Next is the argument that because of the interactive nature of games makes them different from other media. While true, it does not build a solid argument. In games you are pushing a button to make an avatar perform a violent action. This is pretty much the same as a choose your own adventure book. While you control what comes next, you do not perform the violent action. Violent play is much more interactive and gives a more accurate simulation of violence and i is actually the child performing the action. According to the makers and supporters of these laws’ own arguments, this would be more damaging to a child than games, yet there is no complaint.

    E. Zachary Knight
    Oklahoma City Chapter of the ECA
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    E. Zachary Knight
    Divine Knight Gaming
    Oklahoma Game Development
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  26. JDKJ says:

    "Easily made" to the extent that it’s easy to distiguish gaming from all other media. Of course, the lack of conclusive scientific evidence in support of harm makes the argument not so easily made.

  27. JDKJ says:

    But only if their argument is that violent content, regardless of where it raises its ugly head, is harmful to minors. If their argument is that violence content in video games is harmful and makes no case based on violence as it appears in other media, then I can’t see a violation of Fourteenth. And, because of the peculiarly interactive nature of gaming as compared to all other entertainment forms, I can see that arguement being easily made.

    But I’ll confess to being less than intimately knowledgable of the details of their arguements.

  28. E. Zachary Knight says:

    Actually that would be the 14th amendment defense. Because they are seeking to regulate one medium more than another, they are failing to abide equal protection under the law. Thus if they wanted to regulate violence in games, they would have to regulate violence in all media.

    E. Zachary Knight
    Oklahoma City Chapter of the ECA
    MySpace Page:
    Facebook Page:

    E. Zachary Knight
    Divine Knight Gaming
    Oklahoma Game Development
    Rusty Outlook
    Random Tower
    My Patreon

  29. JDKJ says:

    Now, if the law attempted to serve the interest of restricting access by minors to harmful violent video games (assuming, for the sake of the discussion, that there is a potential for harm and protecting minors from that harm was a sufficiently weighty interest) by denying access regardless of whether or not the game actually had violent content, that would be unconstitutional because it wouldn’t be the least restictive means of denying access to the harmful content. But I don’t think the law targets all video game purchases regardless of content, does it? 

  30. JDKJ says:

    I understand the distinction you draw but don’t understand its relevance to the determination of whether or not the California legislation is unconstitutional. The law, as I understand it, doesn’t seek to legislate based on the medium but, rather, does so based on content (i.e., the violence contained in the game). There’s no legal principle that says a legislative attempt to restrict a particular type of content must encompass all media in which that type of content appears. Unfair? Perhaps. Unconstitutional? I think not.

  31. Beacon80 says:

    There’s a difference, though.  Pornography isn’t a medium.  If a game is pornographic, it falls under all the same laws that a pornographic movie does.  If they were moving to legislate violent media, that would be one thing, but singling out violonce only in video games is completely different.

  32. Father Time says:

    If worse comes to worse then they will only be able to get away with not letting children buy games. Fortunately for all of us this isn’t the law Clinton proposed which would seek to modify the ESRB.

    Unless there’s more to those laws than that.


    "What for you bury me in the cold cold ground?" – Tasmanian devil

  33. GRIZZAM PRIME says:

    The citizens of California (like myself) could put pressure on Yee to back off, especially considering the current financial troubles. Then of course there’s the question of wether or not the Supreme Court will even take the case.


    The big thing though, is that if it does go there and our team wins, goodbye threat of censorship.

    But if our team loses…aww shit…Disbaredguy will be on here claiming victory and saying he was single handedly responsible for the whole thing, and video games will be the first medium to be subject to involuntary restrictions in the nation.


    -Remember kids, personal responsibility is for losers! -The Buck Stops Here. -Thou Shall Not Teamkill, Asshole.

  34. JDKJ says:

    It’s beyond reasonable dispute or challenge that videogames are protected speech. THat’s not the issue at hand. The real issue is whether exposure of them to minors is harmful. If it is found that such exposure is indeed harmful . . . . . . . . . . . . . 

  35. Zerodash says:

    Considering that the right for pornography to exist on the internet was upheld by the Supreme Court, I have a good feeling videogames will come out as legitimate protected speech.  (Correct me if I’m wrong about the Supreme Court…I think they ruled on internet porn back in 2004)

  36. Rennie Davis says:

    I would assume he (actually the state of California) would have to because ESA and EMA would petition for Supreme Court review. The Court would not have to grant review, but given the split in the circuits and the interesting issues presented, I would bet they would.

    I’m sure Yee would prefer in that instance that the industry not appeal, but I could not imagine them not doing so. (Sorry for the double negative!)




  37. JDKJ says:

    One wonders if Mr. Morazzini ever took Con Law 101 in law school. Pornography, unless it’s child pornography, is protected speech, sayeth the Supreme Court. Obscene speech is never protected speech, sayeth also the Supreme Court. Ergo, pornography is never obscene, sayeth anyone with half a brain.

    Denying access by minors to pornography was upheld by the Supremes because the potential harm to minors was found to be sufficiently weighty and the means of denial was sufficiently limited, not because pornography is obscene. 

  38. Shoehorn Oplenty says:

    "He said states have every right to help parents who want to keep their children from playing violent video games."

    Hey, after that, why not pass laws helping parents dress their kids in the morning and helping brush their teeth! And then pass a law that is intended to lift up a spoon and feed your children! Why not go so far as to pass a law that forces your children to breath and the blood to move around their bodies! There is NOTHING stopping parents from keeping their kids play violent games, other than their own stupidity or irresponsibility.Where is the law against those?

    "The U.S. Supreme Court already has limited sexually explicit material from children. Violent video games are just as obscene, Morazzini argued."

    Uh, no? One wonders if these people have ever even seen a video game? If the Supreme Court were to limit games saying they were obscene, after that follows every gory horror movie, every horror book, every song with violent lyrics, and every piece of art that depicts bloodshed. THERE IS NO DIFFERENCE IN THE CONTENT, ONLY THE MEDIUM THROUGH WHICH IT IS EXPRESSED.

  39. Father Time says:

    Correct me if I’m wrong but didn’t Louisiana threaten to take a similar case to the supreme court a while back?


     "What for you bury me in the cold cold ground?" – Tasmanian devil

  40. Andrew Eisen says:

    Depends on what specifically you’re referring to.  The APA resolution (the one Thompson consistently misrepresents the findings of) reviewed a bunch of research, some of which was admittedly crap* in its execution.  The APA concluded that a "comprehensive analysis of violent interactive video game research suggests such exposure…increases aggressive behavior…"

    It doesn’t say how large the increase is, how long it lasts, or what exactly is meant by "aggressive behavior."

    Looking at individual studies, you’ll see that nearly all of them conclude that more research is needed.

    So despite what Yee may tell you, there is no conclusive evidence out there that proves (or really even remotely suggests) that violent game play is harmful to children.  If there were, he would have shown it three years ago.


    Andrew Eisen

    *Note to researchers: control groups are your friends.  Use them.

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