The battle between the video game industry and California politicians about whether to criminalise the sale of overly violent video games to minors has been one-sided so far. But the Supreme Court has grounds to turn the tide for California.
Firs Amendment lawyer Julie Hilden explains why the Supreme Court might side with California when it hears the case in its next session, overturning lower court rulings that the California restrictions would violate free speech:
Granted, in the Supreme Court's recent, 8-1 opinion striking down the federal anti-animal-cruelty depiction statute, the Court made very clear that it would not exercise a "freewheeling authority" to create new categories of speech to be carved out, willy-nilly, from the First Amendment's protections. ... And at first glance, this language might seem promising for those who believe, as I do, that the California law should be struck down.
However, the Court also expressly declined, in that same opinion, to foreclose the possibility that it would create some new, categorical First Amendment exceptions in the future – it simply committed itself not to do so in the freewheeling way it felt that the government had proposed, which the Court described as a kind of cost-benefit analysis.
And more generally, there is much evidence that the Court simply does not take minors' First Amendment rights seriously. For instance, it has long allowed a watered-down "obscene as to minors" test to be used when it comes to sexually-explicit material. And the California "violent" video game law plainly borrows from that test.
The Supreme Court hearing won't be a guaranteed win for California. Informed gamers on either side of this issue would best be served to read the Hilden column's column.