WASHINGTON -- A California law that would forbid the sale of violent video games to minors won a hearing before the U.S. Supreme Court on Monday, as the justices voted to take up the state's argument that exceptionally violent material can be kept out of the hands of children without running afoul of the First Amendment.
The move could signal that the court's broad protection for free speech in other contexts does not necessarily extend to children and teenagers.
Six other states -- Illinois, Michigan, Minnesota, Louisiana, Oklahoma and Washington -- have laws similar to California's. So far, all those measures have been invalidated on free-speech grounds in response to suits by the video-gaming industry.
In was something of a surprise that the high court agreed to hear California's appeal just a week after the justices, in a 8-1 ruling, struck down on free-speech grounds a federal law that made it a crime to sell videos of illegal acts of animals being tortured or maimed.
The court gave two reasons for declaring that law unconstitutional. First, the justices said they were wary of creating a new category of unprotected expression, and second, they said the law was so broadly worded it could extend to out-of-season hunting.
Over the many months the court considered the animal-cruelty case, it kept on hold California's appeal in the case of violent video games. Based on last week's ruling, the justices might have been expected to deny the appeal and to allow the state's law to expire. Instead, they voted to grant the appeal and hear the case in the fall.
"It strikes me the court might be willing to draw a line between the adult First Amendment and the 'child's First Amendment'," said Rodney Smolla, a free-speech expert and dean of the Washington and Lee Law School in Virginia. "Despite this court's strong inclination to endorse expansive free-speech rights in the general marketplace, it has been willing at times to carve exceptions for speech involving children."
As an example, he cited the court's ruling in 2007 that said a high school senior could be disciplined for unfurling a banner on the street outside his school that said "Bong Hits 4 Jesus." The court's opinion was written by Chief Justice John G. Roberts Jr., the father of two young children.
At issue are popular video games that permit young players to shoot, wound or kill human characters. Citing psychological research showing that repeat players become more aggressive and hostile, the California Legislature voted in 2005 to limit the sale or rental of games in which players "virtually inflict serious injury upon images of human beings ... in a manner that is especially heinous, cruel or depraved."
Gov. Arnold Schwarzenegger said he was pleased with the court's action. "We have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent action, just as we do with movies," he said. "I look forward to a decision upholding this important law that gives parents more tools to protect their children."
In their appeal, the state's lawyers cited a 1968 ruling that said minors can be prevented from buying sexual material that would be protected as free speech for adults. It urged the justices to stretch this ruling to apply to the sale of violent material to minors.
The court will hear the case of Schwarzenegger v. Video Software Dealers Association in the fall. If California prevails in the high court, the other state laws could be revived as well.
Leaders of the video-game industry said they were surprised by the court's move, but they said they were confident the free-speech rule would prevail.
The stakes are high however the court rules, said Mike Gallagher, president of the Entertainment Software Association. "All types of media could possibly be implicated by this decision, as video games and other forms of entertainment like movies and music are coming closer and closer together to the point where you can't always separate one from the other, " he said. "After years of court cases in a variety of states and localities, we are looking forward to having the Supreme Court issue a definitive opinion on this issue."
The California measure would require violent video games to be labeled as suitable only for those age 18 and older. It would impose a $1,000 fine on retailers who sell or rent these violent video games to minors. Parents would be permitted to buy or rent these same video games for their children.
Before the law could go into effect, the Entertainment Software Association and the Video Software Dealers Association went to court and a federal judge in San Jose, Calif., blocked the law from being enforced. Last year, the 9th U.S. Circuit Court of Appeals in a 3-0 ruling said it was unconstitutional.