By a vote of 7-2, a landmark judgment in the U.S. Supreme Court definitively rules that California’s ban on the sale of violent video games to minors is unconstitutional, effectively declaring video games as a protected form of speech under the First Amendment.
Holding the judgments of the Federal District and the Ninth Circuit rulings before it, the Supreme Court ruled that California Assembly Bill 1179 fails the test of strict scrutiny required for all evaluations of limited speech – that is, that there exists a compelling government interest to limit the content of certain speech and that the proposed law is narrowly drawn to only serve that interest.
More importantly, however, the Court Opinion directly stated: “Video games qualify for First Amendment protection,” marking the first time in history that video games have received this type of quote-unquote “respect” normally reserved for forms of literature and art.
Like protected books, plays, and movies, communicate ideas through familiar literary devices and features distinctive to the medium. And “the basic principles of freedom of speech … do not vary” with a new a different communication medium. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503.
The most basic principle—that government lacks the power to restrict expression because of its message, ideas, subject matter, or content, Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573—is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words.
But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.
In the oral arguments presented last October, the representatives for California asserted that their law does not require the test of strict scrutiny (quietly acquiescing that their legislation didn’t satisfy the judicial scrutiny) because it was not preventing the creation of violent video games, but rather only the sale of those games to minors. Additionally, they alleged that there was a substantial need to aid parents in restricting these video games to their children, citing the studies that linked violent behavior to violent games. The Court, however, held that this argument was not persuasive, stating what numerous other analyses have shown: the law is greatly overinclusive and the cited studies fail to show a behavioral link with any degree of certainty.
Regardless of the details (the tl;dnr version), this landmark decision sets the record straight on two things we (legally biased) gamers already knew: 1) video games constitute free speech under the First Amendment, and 2) California’s law was just plain wrong.