Skip to main content

Not Illegal to Sell Violent Video Games: CA Law Struck Down

By Cynthia Hsu, Esq. on June 27, 2011 | Last updated on March 21, 2019

The Supreme Court has deemed illegal a video game law targeting violent video games. The California ban, passed in 2005, made it illegal to sell or rent "violent video games" to minors under the age of 18.

A "violent video game" was a game that depicts "killing, maiming, dismembering, or sexually assaulting an image of a human being" such that a reasonable person would find it would be deviant or morbid to minors, is patently offensive in the prevailing community, and does not have any serious literary, artistic, political or scientific value to children, reports USA Today.

Due to the lawsuit, the video game ban was never enforced, but it did call for new labeling requirements for violent video games, and a $1,000 fine for violators, according to USA Today.

The majority opinion focused on the ban's violation of First Amendment rights. Justice Scalia, writing the majority opinion, explained that violent video games are not illegal and protected under the First Amendment, just like other literary and media outlets like books and movies.

There is an obscenity exception in the First Amendment - but case precedent "does not cover whatever a legislature finds shocking, but only depictions of sexual conduct," according to Scalia.

In fact, Justice Scalia also cited to a variety of children's books that depicted violence, including Grimm's Fairy Tales. He described how the fairy tale of Snow White included descriptions of how the "wicked queen is made to dance in red hot slippers 'til she fell dead on the floor." And, that Hansel and Gretel killed their kidnapper by baking her in an oven. And, that Cinderella's evil stepsisters have their eyes pecked out by doves.

The ban was then analyzed under strict scrutiny standards: that it must have been justified by a compelling state interest and is narrowly drawn to serve that interest, according to the opinion. California, however, had not restricted violence in other mediums besides video games, like Saturday morning cartoons. As a result, it instead seemed that the state was disfavoring a certain speaker or viewpoint, instead of serving their interest in shielding minors from violence.

As a result, the violent video game law was found to violate First Amendment rights. California's video game ban law had been up on appeal after the 9th Circuit declared it unconstitutional, also on First Amendment grounds, reports USA Today.

Related Resources:

Copied to clipboard