US Supreme Court Decision Will Tell America How Much Free Speech Protection Video Games Deserve

US Supreme Court Decision Will Tell America How Much Free Speech Protection Video Games Deserve

Monday will be a day that could radically change the status of video games in the United States. We’re expecting the Supreme Court of the United States to finally issue a ruling, based on arguments they (and we) heard back in November, about whether the state of California can make it a crime to sell extremely violent video games to children.

The case is now called Brown vs. EMA, (formerly, Schwarzenegger vs. EMA) and involves California’s attempt to enforce a law written by State Senator Leland Yee, a Democrat representing San Francisco, in 2005 that would criminalise the sale of hyper-violent games to kids (not all M-rated games, per se, but only certain types, as defined in the law.) The law would require new labelling on games sold in California and carry a $US1000 fine to those found in violation of the law.

If the Court rules for California, it will be overturning a half decade’s worth of decisions in lower courts that said that California’s law violated the First Amendment protections of the freedom of speech.

Monday's Expected Supreme Court Decision Will Tell America How Much Free Speech Protection Video Games DeserveState senator Leland Yee (D-Calif.) on the steps of the Supreme Court on Nov. 2, 2010, the day of oral arguments. (Photo: Kotaku)

If the Court rules against California, it could still direct the state on how to write a law that would criminalise the sale of games to kids without violating the Constitution. But a complete ruling against the state would be the biggest win yet for the gaming industry’s ongoing battles against mostly Democratic governors and legislators who have argued that violent video games are harmful to kids in ways that violent movies and music are not.

A win for California would separate video games from music, movies, books and all other forms of entertainment in the United States. While music, movies or books that are considered sexually obscene are illegal for everyone in the US, only certain types of non-obscene sexual content can be made illegal for minors on a state-by-state basis (states can and do make it a crime to sell dirty magazines to kids, for example). No other medium is subject to a legal check on extremely violent content in the US, so the criminalisation of selling hyper-violent video games to kids would be a first for any form of entertainment in America. A movie theatre might be breaking its own rules if it sells a ticket for an R-rated movie to a minor, but it’s not breaking the law. In theory, selling a copy of Postal 2 to a kid would become a crime.

The video game industry, led by the ESA, or Entertainment Software Association – a lobbying group funded by big game publishers that also runs E3 each year – has argued that games should be treated like other forms of entertainment. California has argued that games, because they are interactive, have a unique ability to agitate a child’s mind and potentially spark aggressive behaviour in the child.

California contends that, should it win, children will be safer. The gaming industry’s chief advocates contend that speech will be chilled and that retailers and game creators will be compelled to react by selling and producing less edgy content.

We’re expecting a decision shortly after 10am EDT on Monday. Expect full coverage of the decision here on Kotaku.


  • I can’t see a downside to this other than if this law doesn’t pass, we’ll be seeing more 9 year olds playing having the freedom of playing Call of Duty ;_;

  • I’m ok with this.

    I hardly see how anyone would protest it being a crime to sell games that would carry a MA15+ rating here to those under 18…

    Its basically how people here want an R18+ rating.

    • this Law should not be passed! if this law is passed you will be restricting and censoring all games, and if they can do this they are going against the first amendment and can do this to other forms of media/entertainment.

      I aprove of an R18+ law but this is jumping over the cliff. why not just chose to approve the R18+ law to stop 10yr. olds and not ruin the medium for yourself, i am 15 and I approved of the R18+ law because it would benefit the medium by giving us less restriction on games and less to no 10yr. olds ruining this medium for us.

  • Sounds good if common sense wins out and the law passes, at least somewhere it’ll be illegal for little kids to play ADULT video games! What stupid parents allow their kids to play MA15+ games?

  • I too am ok with this. I don’t want violent kids playing videogames. M15 rating means M15 rating – not for kids. I want an R rating for Australia.

    We all know that the legal loophole is gonna happen anyway, mummy will buy kiddie Joseph some blood’n’guts game then say how horrified she is at videogames.

  • If they get this through, it should keep the a.d.d. spergs off of Modern Warfare 3, you know, the kids who think they are real soldiers because of their stats and play 24/7.

  • I think this needs to happen, you only need to see the aussie news each Sunday mornIng with stories of younger teenagers stomping each others heads across the suburbs to realize that.
    People are now desensitized to violence, and videogames are the most interactive, descriptive violence we get exposed to. Its gotta be done

  • Yeah, I agree kid’s shouldn’t be playing games inappropriate for their age (and we could all use less of them online) but I believe that should be up to the parents. And rather than outlawing it, it should be discouraged and parents should be made aware.
    The government is making it illegal for kids to play violent video games now, but what’s next? Where does one draw the line?

  • I believe there was a Penny Arcade comic about this way way way back, when it was still Schwarzenegger vs. EMA. The punchline if I recall was something along the lines of, “you can’t buy a violent game because you’re too young? That’s cool, just get older, it just takes time. How old are you now, 16? Just wait a couple of years.”

    It’s always struck me as obscenely stupid that we’re so repressed about sexual content, not violence though.

    Maybe it’s just the current climate and culture of game development, but really, I don’t think we’re in any danger of seeing hyper-real (or even modestly realistic) depictions of sex in our medium, especially not with our medium’s key feature of interactivity. But our violence, that’s awesome, we’ve got interactive violence out the wing-wong. So instead of sexual content, we’re seeing violence levels used to demarcate between games for kids and games for adults.

    Maybe I’m missing a whole swath of legalese and nuanced understanding of the changes that would come, but this doesn’t seem all that bad to me.

  • The issue is that the political system in the US is so different to here. We take for granted government intervention in things like media classification (and classification enforcement), whereas in the US it’s seen as an impingement on individual liberty. The response from an American to this law would pretty invariably be “who is the government to tell me what I can watch/play/expose my children to?”. Different strokes for different folks I guess.

  • I’d welcome that law in Australia, we’d be more likely to R18+ games, knowing it would be a crime to sell them to child. At least I think so anyway..

    • Dude we DO have that law in Australia. That’s the point, it DOESN’T matter, it’s just a scapegoat to more important problems. Hey hears an idea American politicians, instead of being ingrates by destroying your freedom of speech, how about you FIX YOU EDUCATION SYSTEM by possible using interactive entertainment properly to educate…

  • maybe im alone in it but i think this is a bad idea making it a crime to sell any game to any kid. if the kids parents don’t care, who the f*ck is the government to tell them they are wrong. i live in Australia so naturally i hate the nanny state thing we have going on here. Games should be made raw and to the best of the developers ability, not produced with worries about if the game will be ‘too violent’ or not..

  • From what I have read previously, most stores in the US were already voluntarily enforcing the rating system and not selling violent games to minors. It seems a a bit of overkill to threaten them with criminal charges if they’re already doing the right thing.

  • I agree with most people saying it’s not a big deal to make it illegal to sell hyper violent video games to kids but I think the issue is that games are being held in a higher regard than other media. If it’s illegal to sell violent video games to kids it should also be illegal sell violent movies to kids.

    Violent video games have been proven to have no greater impact on children than any other media so they should be treated the same. Looking at it from our point of view with our issues with classifications and lack of an R18+ rating it’s hard to see the problem but once video games get seperated from other media you end up with the issue we have

  • Wow. Lots of really surprising talk in here. This is a pretty clear weakening of the First Amendment, as it has been interpreted for a long time in the US. They do not have laws there that prevent the sale of most material to minors (pornography excluded) as a freedom of speech act.

    It’s surprising me a lot to find commenters here in Australia so supportive of this proposal. This is the first step that we’ve already taken too far, here, in classifying games differently to other media. If they pass this law, the US will effectively be stating that videogames are so different to other media that they should be regulated differently – which is what the Australian classification system already does. You’ve all seen what happens when that is allowed, right? THAT is why we don’t have an R18+ rating here in Australia.

    • I agree. I think because we don’t even have our R18+ yet it’s hard for us to see the bigger issue with what this means if it goes through. A lot of us will just think it’s American having a whinge but it’s really similar to the issue we have here and will have a major effect on how games are treated not just in america but world wide

  • This is the biggest waste of the legal systems time in recently history… Kids don’t buy games parents do, honestly this is the most pathetic & uninspired case. Moronic Californians!

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