Because the California law at the center of Schwarzenegger v. EMA is unable to specifically define exactly what entails a “violent” game, one practicing lawyer predicts a win for the game industry when SCOTUS eventually hands down its ruling on the legality of restricting the sale of such games to minors.
The lawyer behind The Fine Print blog notes that free speech under the First Amendment “has never been unlimited,” especially when it comes to minors. He details two of the better known exceptions:
First, child pornography is outright censored in the United States; it is illegal to make, sell, or own, no freedom whatsoever. The sale of pornography to minors is also restricted, on the theory that while adults can choose for themselves if they can “handle” pornography, children won’t know until it’s too late that something is too much for them or harmful to their well-being.
That being said, it was also argued that the California lawmakers have, so far at least, failed to “convince the courts that violent video games are a legitimate threat to children’s safety and well-being.” Additionally, it has yet to be proven that the law in question would do a better job than the current pairing of ESRB system and retailer enforcement when it comes to keeping higher rated games out of the hands of youngsters.
For all the reasons cited, the author predicts that the Supreme Court will reject the law. However, if the game industry loses, it might not be the end of the world so many have predicted:
If the Court does uphold the law, I don’t think it would be as harmful to the industry as some seem to fear. Most of the games that would be effected already carry the Mature rating and most game stores don’t sell Mature games to minors. The harm would be far more philosophical than actual. The pornography industry has not been driven out of business by the lack of ability to sell to 15 year olds, neither would the game industry be crippled by the lost sales certain games might suffer.