Take a bow Supreme Court.
Well, everyone except Clarence Thomas and Stephen Breyer. You guys dissented in the The State of California vs. The Entertainment Merchants Association (EMA) and the Entertainment Software Association (ESA) ruling and don't get to enjoy the moment. But everyone else, you deserve a bow for upholding the U.S. Constitution.
In 2005, the State of California passed a law that forbade minors to buy violent video games. By definition, this meant any video games that showed someone, killing, maiming, dismembering or sexually assaulting an image of a human being. Using the Miller test as a reference point, the law said because the violent games were patently offensive and were not protected by the First Amendment. The Miller test is a three point test which determines if content is offensive and not up for First Amendment protection.
To the politicians in California, they were protecting the kids. To many others it was an abrupt violation of the First Amendment, free speech rights using a broad term that could be applied to nearly anything. Naturally the ESA and EMA sought to overturn this law, just like they had done to similar laws in Michigan, Louisiana and Illinois.
The law went to the United States District Court for the District of Northern California where it was overturned. The California government, led by Yee and then Governor Arnold Schwarznegger wouldn't give up despite the court saying it violated the First Amendment. It then went to the Ninth Circuit Appeal, where the lower court's decision was upheld. Once again, the court saw through the California government's attempts to save the children and saw a violation of the First Amendment.
Of course, the California political crusaders weren't done yet. They appealed to the Supreme Court, which ruled 7-2 in favor of the video game industry and the upheld the lower courts' decision. I'm sure if the California lawmakers could appeal once more, they probably would do it. Thank God they can't.
Much like other entertainment mediums, certain video games have been unfairly connected to kids' violent behavior. The lawmakers used psychiatric studies linking video games to violent behavior. These kinds of studies are never definitive. How could they be? Does anyone truly know what has influenced a child's violent behavior? When Columbine happened, everyone was quick to blame Marilyn Manson. Then we found out the shooters didn't even listen to him.
Whether or not violent video games lead to violent behavior from kids is actually beside the point anyway. As the courts constantly argued throughout this whole ordeal, the definition of a violent video game is ridiculously broad. Is Madden 2011 violent because it shows people getting tackled? There is an entire series of Mario video games based on fighting in head to head combat.
I also applaud Justice Antonin Scalia for bringing up a valid point in comparing video games vs. other forms of artistic entertainment.
California's argument would fare better if there were a long standing tradition in this country of specially restricting children's access to depictions of violence, but there is none. Certainly the books we give children to read-or read to them when they are younger-contain no shortage of gore, Justice Scalia said.
Bingo. Books, TV and movies have a long-standing history of being violent and not being restricted for sale by law. If you uphold this California law, how long before forms of violent TV, film, music and books are restricted for similar reasons. Politicians might not like it, but video games are just as artistic as any of those other mediums and deserve equal protection.
Lastly, the video game industry has done a superb job of self regulation and putting the ball in parents' hands. The Entertainment Software Rating Board (ESRB) rates each video game as either Early Childhood, Everyone, Everyone 10+ (10 and older), Teen (13 and older), Mature (17 and older), Adults Only (18 and older). Just like movies, music and TV, it has gotten along fine regulating itself without any government interference.
While the victory is definitely a good one for the video game industry, video games will likely continue to fight against lawmakers with an agenda. Video game publishers and industry associations I talked to acknolwedged this in conversations after the ruling. Take for instance Senator Yee. Even after his law suffered its third straight courtroom defeat, he released a statement vehemently disagreeing with the ruling.
Unfortunately, the majority of the Supreme Court once again put the interests of corporate America before the interests of our children, Yee said.
Like I said, this politican would probably appeal to the Supreme Supreme Court if it existed.
Follow Gabriel Perna on Twitter at @GabrielSPerna